Russell Moss George v. The State of Texas--Appeal from 262nd District Court of Harris County

Affirmed and Memorandum Opinion filed December 18, 2008

Affirmedand Memorandum Opinion filed December 18, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-08-00121-CR

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RUSSELL MOSS GEORGE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1120329

M E M O R A N D U M O P I N I O N

A jury convicted Russell Moss George of possession of a controlled substance and, after finding two enhancement paragraphs Atrue,@ sentenced him to 37 years= confinement in the Texas Department of Criminal Justice, Institutional Division. In three issues, appellant asserts that the trial court erred in denying (a) his motion to suppress evidence and (b) his Batson challenge to the jury. We affirm.

I. Background

Appellant was indicted for possession with intent to deliver more than four grams and less than two hundred grams of a controlled substance, methamphetamine. He filed a pre-trial motion to suppress the drugs discovered in his motorcycle on the basis that the arresting officer lacked probable cause to arrest him and search his vehicle under federal and state constitutional principles. The trial court did not hold a pre-trial hearing on his motion to suppress and instead considered his motion during his trial.

According to Deputy Walter Dyches from the Harris County Precinct 5 Constable=s Department, on June 10, 2007, he was patrolling a toll road in northwest Harris County, looking for E-Z Tag violators. He saw a black motorcycle go through the E-Z Tag lane and a red signal lit, indicating that the vehicle had no E-Z Tag. Dyches proceeded to follow the motorcycle while he called into dispatch with the vehicle=s license plate number. Dispatch responded that the E-Z Tag assigned to that license plate had been reported stolen. Dyches then initiated a traffic stop of the motorcycle for the offense of failure to pay a toll.

The driver of the motorcycle, identified as appellant, pulled to the side of the road. Dyches got out of his marked patrol vehicle and approached appellant, who dismounted his motorcycle. Dyches requested both appellant=s driver=s license and insurance card. Dyches testified, AAt this point, I could physically observe that [appellant] was nervous. He was shaky, sweaty, and wouldn=t make eye contact. When I did ask him for his driver=s license, it took him an extremely long time to get his license out of his wallet.@ When appellant opened the storage compartment underneath his motorcycle=s seat to get his insurance card out, Dyches glanced into the compartment for Asafety reasons.@ According to Dyches, he saw a clear cellophane bag with a white substance in it. Dyches, having been trained in recognizing Astreet drugs@ such as marijuana, methamphetamine, and heroin, stated that he believed that appellant possessed an illegal narcotic, namely methamphetamine. He also testified that he believed appellant was likely under the influence of drugs because of his behavior, e.g., sweating and excessive nervousness.

Based on his observations, Dyches asked appellant if he had anything Aillegal@ in his motorcycle. Dyches testified that appellant responded, AI don=t think so.@ According to Dyches, he then asked appellant if he could search his motorcycle, and appellant verbally consented. Dyches explained that appellant informed him about several additional bags of methamphetamine that were hidden inside a yellow marker found in the storage compartment beneath the seat of appellant=s motorcycle. Dyches=s search resulted in the discovery of a small amount of marijuana, a few Ecstasy pills, and numerous baggies of methamphetamine.

On cross-examination, Dyches stated that he did not recall appellant showing him a second E-Z Tag during his encounter with appellant. Dyches denied that appellant told him he had replaced the stolen E-Z Tag associated with his license plate number. Dyches did, however, acknowledge that he did not perform any field sobriety testing on appellant that evening.

At the conclusion of Dyches=s testimony, the trial court excused the jury to allow appellant to testify regarding the suppression motion. Appellant testified that he never consented to a search. He also stated that he immediately closed the storage compartment on his motorcycle after removing his insurance information. He further explained that his old E-Z Tag had been stolen, but that he had obtained a replacement tag, which was stored in his under-seat compartment. According to appellant, he provided Dyches with his new E-Z Tag when he gave him the insurance documents. After considering the testimony and arguments from the suppression hearing, the trial court denied appellant=s motion to suppress.

The jury found appellant guilty of possession of more than four and less than two hundred grams of methamphetamine. The jury also found two enhancement paragraphs Atrue,@ and sentenced appellant to thirty-seven years= confinement in the Institutional Division of the Texas Department of Criminal Justice. The trial court rendered judgment on the jury=s verdict, and this appeal timely ensued.

II. Issues Presented

In his first and second issues, appellant contends the trial court erred in denying his motion to suppress evidence because there was no probable cause to arrest him and search his vehicle incident to arrest, in contravention of his state and federal constitutional rights. In issue three, appellant argues that the trial court erred in denying his Batson challenge to one of the jurors struck by the State.

III. Analysis

A. Motion to Suppress

We review a trial court=s ruling on a motion to suppress A>in the light most favorable to the trial court=s ruling.=@ Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)). Because the trial court observes the demeanor and appearance of witnesses, it is the Asole trier of fact and judge of the credibility of witnesses and the weight to be given to their testimony.@ State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (en banc). When reviewing a trial court=s denial of a motion to suppress, we afford almost total deference to the court=s express or implied determination of historical facts, while reviewing the court=s application of search and seizure law to the facts de novo. Wiede, 214 S.W.3d at 25. Where, as here, there are no written findings in the record, we uphold the ruling on any theory of law applicable to the case and assume the trial court made implicit findings of fact in support of its ruling so long as those findings are supported by the record. Ross, 32 S.W.3d at 855B56.

Consent to search is a well-established exception to the state and federal constitutional requirements of probable cause and a warrant. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) (en banc). AThe validity of an alleged consent to search is a question of fact to be determined from all the circumstances.@ Id. The State must prove validity of the consent by a preponderance of the evidence to satisfy the federal constitution, but the Texas Constitution requires proof by clear and convincing evidence. Id.

In his briefing, appellant argues this issue as follows:

[T]he facts presented clearly failed to demonstrate that the State of Texas introduced any evidence that a crime had been committed in the presence of the arresting officer nor did the officer testify that he had a warrant for the arrest or search of the [a]ppellant=s vehicle. The defendant testified that he did not give the office permission to search his vehicle. Further, he related that he did have an EZ [T]ag on his motorcycle.

(record citations omitted). We disagree with appellant=s arguments for several reasons.

Appellant has overlooked the fact that a law enforcement officer may stop a vehicle when that officer has reasonable suspicion to believe that a traffic violation has occurred. Goudeau v. State, 209 S.W.3d 713, 716 (Tex. App.CHouston [14th Dist.] 2006, no pet.) (citing Terry v. Ohio, 392 U.S. 1, 22 (1968)). Here, Dyches testified that he saw appellant commit a traffic violation, failure to stop and pay a toll.[1] Thus, he was authorized to stop appellant=s vehicle. While appellant=s vehicle was stopped, Dyches became suspicious about appellant=s exceedingly nervous behavior and observed what he believed to be an illegal narcotic in the open storage area underneath appellant=s seat.[2]

Based on appellant=s suspicious behavior and Dyches=s observation of what he believed to be methamphetamine in appellant=s storage compartment, Dyches testified that he asked appellant if he could search his vehicle. Dyches stated that appellant acquiesced to the search. Law enforcement officers may conduct a valid warrantless search if a suspect voluntarily consents. See Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (en banc) (ASince the search followed a legitimate traffic stop and was carried out with appellant=s consent, it was reasonable under the Fourth Amendment.@); Maxwell, 73 S.W.3d at 281. Such consent to search may be oral. Manzi v. State, 56 S.W.3d 710, 719 (Tex. App.CHouston [14th Dist.]), aff=d, 88 S.W.3d 240 (Tex. Crim. App. 2002).

In sum, although appellant denies having consented to the search, the trial court was the Asole trier of fact and judge of the credibility of witnesses and the weight to be given to their testimony.@ Ross, 32 S.W.3d at 855. By denying appellant=s motion to suppress, the trial court implicitly found Dyches=s testimony more credible than appellant=s. This implicit finding is supported by the record. Viewing the evidence in the light most favorable to the trial court=s ruling and deferring to the trial court=s implicit fact-findings, we conclude that the trial court did not err in denying appellant=s motion to suppress. We therefore overrule his first and second issues.

B. Batson Challenge

An accused has a right to a trial by a jury whose members are selected in a racially neutral, nondiscriminatory manner. Batson v. Kentucky, 476 U.S. 79, 85B86 (1986); Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 2006) (codifying the Batson standard). We review a trial court=s ruling on a Batson challenge in the light most favorable to the ruling, giving deference to the trial court=s assessment of credibility and demeanor. Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991) (en banc).

A Batson challenge generally gives rise to a three step process. First, the defendant must make a prima facie case that a veniremember was peremptorily excluded on the basis of race. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). Second, the prosecution must come forward with race neutral reasons for the peremptory strike. Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003). Finally, the defendant then has the opportunity to rebut the State=s explanations. Id. If, however, the trial court immediately inquires whether the proponent of the strike had a non-discriminatory purpose, we must assume that the opponent has made his prima facie case of purposeful discrimination and address only the second and third steps of the process. Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008). The burden of persuasion remains with the defendant to prove purposeful discrimination by a preponderance of the evidence. Id.

A trial court=s decision on whether the opponent has proved a Batson claim turns, in part, on observations made during the voir dire examination. Young v. State, 826 S.W.2d 141, 145 (Tex. Crim. App. 1991) (en banc). We may not overturn the trial court=s resolution of the Batson issue unless, in light of the entire voir dire record, it is clearly erroneous. Watkins, 245 S.W.3d at 447B48. A[A] trial court=s conclusion that a facially race-neutral explanation for a peremptory challenge is genuine, rather than a pretext, [must be examined] with great deference . . . .@ Id. at 448. We may reverse only if we are left with the Adefinite and firm conviction that a mistake has been committed.@ Hill v. State, 827 S.W.2d 860, 865 (Tex. Crim. App. 1992) (en banc) (quoting U.S. v. Hernandez, 887 F.2d 564, 567 (5th Cir.1989)).

Here, after the jury was selected, appellant=s trial counsel made a Batson objection, alleging that venire member 30 had been struck based on her raceBHispanic.[3] When prompted by the trial court, the prosecutor responded that juror number 30 had listed her occupation as a legal secretary or legal assistant and that she Ajust [didn=t] normally put lawyers or legals@ on the venire panel. The trial court found this explanation to be racially neutral.[4] Because the State provided a facially valid, race-neutral reason for striking the challenged panel member, the burden shifted back to appellant to establish that the State=s explanation was a sham or pretext for discrimination. Simpson, 119 S.W.3d at 268.

Appellant did not rebut the State=s race neutral explanations or otherwise attempt to establish that its explanation for striking panel member 30 was pretextual. See Johnson, 68 S.W.3d at 649. In addition, the record does not reflect that any non-Hispanic panel members who shared this particular panel member=s profession were not subject to a peremptory strike by the State. See, e.g., Miller-El v. Dretke, 545 U.S. 231, 241 (2005) (AIf a prosecutor=s proffered reason for striking a black panelist applies just as well to an otherwise similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination . . . .@). Under these circumstances, appellant has not established, by a preponderance of the evidence, that this veniremember was excluded on the basis of race. We therefore overrule appellant=s third issue.

IV. Conclusion

We conclude that the trial court did not err in overruling appellant=s motion to suppress. Further, appellant has not established that veniremember 30 was excluded on the basis of race. We therefore overrule appellant=s three issues and affirm the judgment of the trial court.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed December 18, 2008.

Panel consists of Chief Justice Hedges and Justices Guzman and Brown.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] A person commits a misdemeanor offense if, while operating a vehicle on a toll road, he fails or refuses to pay a toll. See Tex. Transp. Code Ann. ' 284.070(a) (Vernon 2008).

[2] Appellant admitted that he opened the storage compartment underneath the seat of his motorcycle to retrieve his insurance documents.

[3] At trial, appellant also noted venire member 35 as part of his Batson challenge. The State responded that panel member 35 had a prior arrest for cocaine use. The trial court agreed that was a nonracial reason for striking that member. On appeal, however, appellant only challenges the prosecutor=s proffered race-neutral explanation regarding juror number 30.

[4] Generally, striking a juror based on occupation only does not violate Batson. See Harris v. State, 996 S.W.2d 232, 235 (Tex. App.CHouston [14th Dist.] 1999, no pet.).